The CDC Opens Things Up!

On May 13, the CDC issued a new guidance regarding the COVID-19 precautions that fully vaccinated persons in non-healthcare settings may now follow.
The CDC stated that fully vaccinated people in non-healthcare settings can:

  • Resume activities in any setting without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance
  • Resume domestic travel and refrain from testing before or after travel or self-quarantine after travel
  • Refrain from testing before leaving the United States for international travel (unless required by the destination) and refrain from self-quarantine after arriving back in the United States
  • Refrain from testing following a known exposure, if asymptomatic, with some exceptions for specific settings, such as if experiencing symptoms or testing positive within the preceding 10 days.
  • Refrain from quarantine following a known exposure if asymptomatic
  • Refrain from routine screening testing if feasible
  • For now, fully vaccinated people should continue to:
    • Get tested if experiencing COVID-19 symptoms
    • Follow CDC and health department travel requirements and recommendations
    • Not visit public or private settings if they have tested positive in the prior 10 days or are experiencing symptoms

You can read the full CDC recommendation here: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

As you may recall, late last month our Governor lifted our statewide mask mandate and required that masks be worn on public transit, in state government buildings, schools, and healthcare facilities. Significantly, the Governor stated that “Mask policies in Louisiana will be set by local leaders and business owners.” This, coupled with the CDC’s guidance that masks must be worn if required by “local business and workplace guidance” would seem to indicate that the CDC and Louisiana still require masks if business owners or employers require them.  This probably means that employers should revise their own written policies if they are going to remove the mask mandate. 

Many employers are asking how these new guidances will impact the application of Louisiana’s Limitation of Liability for COVID-19 (LSA-RS 9:2800.25). This statute generally provides that if a person or entity substantially complies with applicable COVID-19 procedures established by applicable federal, state or local agencies, it will not be liable for damages due to exposure to COVID-19 in the operation of its business.

Governor Edward’s April guidance specifically states that “Lifting of the mask mandate does not affect the COVID-19 liability protections that were enacted by the Louisiana Legislature which require businesses and schools to follow the recommendations of state and federal health authorities, all of which recommend continued mask-wearing.”

To confuse the issue further, we can’t forget OSHA. OSHA still has guidance on its website stating that employers should not make distinctions between fully vaccinated employees and those who are not.

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because, at this time, there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

OSHA’s position is a bit dated and in conflict with the CDC’s guidance, but it is still there, at least for now.

So, even though it appears as if our Governor and the CDC have significantly eased their mask requirements, we urge businesses to slow down and exercise caution. It is very likely that state and federal guidance will evolve quickly over the next few weeks, providing employers with some clarity on this issue.

My Employees Have Been Jabbed Twice, Now What?

I have been getting a lot of questions about the CDC’s stance on mask use after being fully vaccinated, and whether or not employers should continue to require employees who have been fully vaccinated to wear masks. The short answer is: It depends. Below is an excerpt from FAQs published by the CDC last Tuesday the 13th that will shed some light on this issue.

Do I need to wear a mask and avoid close contact with others if I have gotten 2 doses of the vaccine?

It depends. For now, fully vaccinated people can gather indoors without physical distancing or wearing masks with:

  • Other people who are fully vaccinated
  • Unvaccinated people from one other household, unless any of those people or anyone they live with has an increased risk for severe illness from COVID-19.

Until more is known, fully vaccinated people should continue to wear masks and stay 6 feet apart from other people in other settings, like when they are in public or visiting with unvaccinated people from multiple households.

This should get you to the CDC’s COVID-19 FAQ page. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html

Keep in mind LSA-R.S. 9:2800.25 when deciding if you are going to continue to require your employees to wear masks. You haven’t memorized LSA-R.S. 9:2800.25? Here are the relevant parts:

  1. No natural or juridical person, state or local government, or political subdivision thereof shall be liable for any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19 in the course of or through the performance or provision of the person’s, government’s, or political subdivision’s business operations unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency which governs the business operations and the injury or death was caused by the person’s, government’s, or political subdivision’s gross negligence or wanton or reckless misconduct. If two or more sources of procedures are applicable to the business operations at the time of the actual or alleged exposure, the person, government, or political subdivision shall substantially comply with any one applicable set of procedures.
  2. An employee whose contraction of COVID-19 is determined to be compensable under the Louisiana Workers’ Compensation Law shall have no remedy based in tort for such exposure against his employer, joint employer, borrowed employer, statutory employer, any other person or entity listed in R.S. 23:1032(A)(1)(b), and any other person or entity potentially liable pursuant to the Louisiana Workers’ Compensation Law unless the exposure was intentional as provided by R.S. 23:1032(B).

This is a link to the Act. https://legis.la.gov/Legis/Law.aspx?d=1187405

I strongly encourage you to check the CDC web site daily and to follow its latest guidance and recommendations.